The Federal Constitution

The institution of the Supreme Court of Justice is based directly on a provision of the Constitution. It is the only court in the system of ordinary courts established directly by an article of the constitution.

Art. 92 Para. 1 of the Federal Constitution provides: “The Supreme Court is the court of final appeal in civil and criminal matters.” The Austrian Constitution thus requires there to be a single supreme court, namely the Supreme Court of Justice, for both civil and criminal cases.

In constitutional terms, this constitutes a guarantee that the Supreme Court will continue to exist. It cannot be abolished by legislation governing the structure of the courts at the ordinary statutory level, and it must be the court of final appeal within its jurisdictional sphere.

This constitutional provision does not provide that an appeal in civil and criminal matters must end at the Supreme Court in all cases. An appeal to this court can be subject to procedural restrictions, a desirable feature in individual cases, which also enable it to fulfil its role as the court that must issue guiding judicial decisions within a reasonable time (see also the page on position and functions). However, the restrictions on access to the Supreme Court must not be so broad that its role is undermined and that it loses its significance as a court of final appeal. Procedural legislation (e.g. the Code of Civil Procedure and the Code of Criminal Procedure) specifies the cases in which the Supreme Court can be invoked as the court of final appeal.

Art. 92 Para. 2 of the Federal Constitution contains provisions on incompatibility that apply to the justices of the Supreme Court. Members of the Federal Government, a Land Government or a popular representative body may not be members of the Supreme Court. For members of the popular representative bodies elected for a fixed legislative period or term of office, this incompatibility continues until expiry of the legislative period or term of office, even if the person concerned leaves office prematurely. No one who has held one of these functions during the last four years may be appointed as President or Vice-President of the Supreme Court. These incompatibility provisions in the Constitution implement the underlying separation of powers principle. The office holders of the highest forum within the court system (Federal Constitution, Third Chapter, Federal Execution. B. Jurisdiction) should not be involved either in legislative or in executive activities.

A further consequence of the separation of powers in the sense of mutual checks and oversight of the legislative, judiciary and executive is found in the constitutional mandate expressly given to the Supreme Court (as well as to the lower appellate courts) under Art. 89 Para. 2 second sentence of the Constitution, providing that it shall apply to the Constitutional Court for invalidation of a provision of law if the Supreme Court has concerns about applying the law on the grounds of its being unconstitutional.

The Supreme Court Act

On the basis of the constitutional provision, the organisation of the Supreme Court is governed by the Federal Act dated 19 June 1968 concerning the Supreme Court, Federal Gazette 1968/328 as amended by Federal Gazette I 2007/112 (Supreme Court Act). Until this law was passed, the Court’s organisation was governed by a large number of statutes, some of which dated back to the Monarchy. Sec. 1 of the Act, implementing the constitutional provision, provides: “The Supreme Court (Art. 92 Para. 1, Federal Constitution) is the supreme court in the system of ordinary courts. It consists of a President, two Vice Presidents and the necessary number of members (Presidents of the Panels and justices [“Hofräte”]).”

The Supreme Court Act, in particular, governs the composition in which the decision-making bodies of the Supreme Court known as Panels perform their duties. Pursuant to this provision, unless provided otherwise by law (c.f. Sec. 11 Para. 1 of the Labour and Social Courts Act and Sec. 59 Para. 1 No. 2 of the Competition Act 2005), a (simple) Panel is made up of the Chief Justice and four other Members of the Supreme Court, one of whom acts as reporting justice (Sec. 6, Supreme Court Act). In certain (exceptional) cases specified in Sec. 7 of the Supreme Court Act, cases are heard by three-member Panels made up of the Chief Justice and two additional Members.

Depending on the allocation of court business, a simple Panel is enlarged by adding six further members if, by ruling, the panel determines that a decision it intends to render concerns a legal issue of fundamental significance and would involve a departure from the Supreme Court’s consistent jurisprudence or a departure from the most recent decision of an Enlarged Panel on this issue, or if the case involves a legal issue of fundamental importance that has not been given a uniform answer in the Supreme Court’s jurisprudence (Sec. 8, Supreme Court Act).

The jurisprudence established by decisions of the Enlarged Panels thus binds the Supreme Court in future decisions on this question, and can only be reversed by a new Enlarged Panel decision. Enlarged Panel decisions are of fundamental importance to the jurisprudence of the entire judiciary.

Upon request by the Federal Minister for Justice or the President of the Supreme Court, special panels formed in the course of the allocation of business issue legal opinions on draft Acts of Parliament or regulations (Sec. 11, Supreme Court Act).

The Members of the Supreme Court in the aggregate form the Plenary Assembly (Sec. 9, Supreme Court Act) that is responsible for issuing the activity report (Sec. 12, Supreme Court Act). This report on the Court’s activity is issued each year, and the Court’s findings as set out in the report can contain suggestions for legislation. It is submitted to the Federal Minister for Justice, and may be communicated to the President of the National Council (Parliament), the Presidents of the Constitutional and Administrative Courts, other federal ministers and the Governors of the various Länder.

The Reports on the activities of the Plenary Assembly and the expert opinions by the Expert Reporting Panels of the Supreme Court mean that this area of activity takes on particular significance in the field of legal policy.

Sec. 15 of the Supreme Court Act provides that decisions must be documented, the provision being implemented in the form of the publicly accessible database set up by the Federal Minister for Justice under the name “Entscheidungsdokumentation Justiz” (Sec. 15, Supreme Court Act), that database contains the full text of Supreme Court decisions and statements of legal propositions prepared by the Records Office (Sec. 14, Supreme Court Act). The data documenting the decisions is available on the Internet: www.ris.bka.gv.at (where feasible in technological and documentational respects) (Sec. 15, Supreme Court Act)

Like other federal legislation passed on the structure of the courts, the Supreme Court Act also contains regulations on the allocation of court business (Sec. 13), the Court and Filing Office (Secs. 16 and 17), the issuing of decisions (Sec. 18), the provision of information (Sec. 20), the Court Library (Sec. 21) and an authorisation issued to the President to issue, by administrative decree, Standing Orders for the internal business of the Supreme Court (Sec. 22).

The Standing Orders of the Supreme Court

The Standing Orders of the Supreme Court 2005 were issued on the basis of this power. In addition to general provisions, they contain detailed regulations on the receipt of communications intended for the Court, the Registers and business structures maintained by the Court, provisions concerning the creation and maintenance of files, stamps and seals, regular reporting, the handling of business documentation, file archiving, publication of and access to decisions, regulations concerning the Records Office, the training and employment of trainee judges, management of the court and the Official Library.

The Judicial and State Prosecutor Employment Act

Sec. 36 Para. 1 of the Judicial and State Prosecutor Employment Act provides that a Personnel Panel is to be established at the Supreme Court, as at every other court. The Personnel Panel consists of the President and the longest-serving Vice-President as well as three elected members. This Panel is essentially responsible for determining the allocation of the Court’s business (Sec. 13, Supreme Court Act), for submitting proposals for appointments to the established posts of the Vice-Presidents and Presidents of the Higher Regional Courts of Appeal and the established posts at the Supreme Court, with the exception of those of the Vice Presidents and the President (Sec. 32 Para. 4, Judicial and State Prosecutor Employment Act). It is also responsible for the assessment reports on the President and Vice-Presidents of the Higher Regional Court of Appeals and the justices appointed to the Supreme Court with the exception of the President and the Vice-Presidents (Sec. 52 Para. 1, No. 3, Judicial and State Prosecutor Employment Act). When proposals are submitted for appointments to established posts at the Supreme Court, Sec. 33 Para. 3 of the Judicial and State Prosecutor Employment Act provides that, where the candidates are equally qualified (and absent any provisions to the contrary), candidates from Higher Regional Court of Appeal districts that are underrepresented must be given preference. This is intended to strengthen the federalist principle of the Constitution.

In addition to the Personnel Panel, Sec. 36a of the Judicial and State Prosecutor Employment Act provides that an External Panel of the Supreme Court must be formed. This External Panel consists of the President and the longest-serving Vice-President of the Supreme Court and five elected members, elected by the elector members of the Personnel Panels of the Higher Regional Courts of Appeal from amongst all the judges eligible for election at the Higher Regional Courts of Appeal and the Supreme Court. Following proposals by the Personnel Panels of the Higher Regional Courts of Appeal, the External Panel must also submit a proposal for appointments to the established posts of the Vice-Presidents and Presidents of the first instance courts and for the established posts at the Higher Regional Courts of Appeal with the exception of the established posts of the latter’s Presidents and Vice-Presidents (Sec. 32 Para. 2, Judicial and State Prosecutor Employment Act).

The Judicial Organisation Act

Pursuant to Sec. 77 of the Judicial Organisation Act, the Supreme Court also has the power to issue a reprimand to the courts of first instance and lower appellate courts concerning defects in the exercise of their judicial powers, and to notify the Federal Minister of Justice of the defects it has identified and the measures appropriate to eliminate them.